48-111. Elective compensation; election; effect; exemption from liability; exception.

Such agreement or the election provided for in section 48-112 shall be a surrender by the parties thereto of their rights to any other method, form, or amount of compensation or determination thereof than as provided in the Nebraska Workers' Compensation Act, and an acceptance of all the provisions of such act, and shall bind the employee himself or herself, and for compensation for his or her death shall bind his or her legal representatives, his or her surviving spouse and next of kin, as well as the employer, and the legal representatives of a deceased employer, and those conducting the business of the employer during bankruptcy or insolvency. For the purpose of this section, if the employer carries a policy of workers' compensation insurance, the term employer shall also include the insurer. The exemption from liability given an employer and insurer by this section shall also extend to all employees, officers, or directors of such employer or insurer, but such exemption given an employee, officer, or director of an employer or insurer shall not apply in any case when the injury or death is proximately caused by the willful and unprovoked physical aggression of such employee, officer, or director.

Source

Annotations

1. Remedy exclusivity

2. Exemption from liability

3. Miscellaneous

1. Remedy exclusivity

A public utility employee cannot maintain a separate suit against a city for an injury incurred on the job, because the Nebraska Workers' Compensation Act is the exclusive remedy of the injured public utility employee against the city where the public utility is an agency or department of the city. Hofferber v. City of Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008).

This section and section 48-148 are routinely referred to by the Nebraska Supreme Court as the "exclusivity" provisions of the Nebraska Workers' Compensation Act. Bennett v. Saint Elizabeth Health Sys., 273 Neb. 300, 729 N.W.2d 80 (2007).

When read with section 48-110, this section mandates that an employee surrenders his or her right to any method, form, or amount of compensation or determination thereof against his or her employer or workers' compensation insurer other than that as provided in the Nebraska Workers' Compensation Act when that employee sustains an injury, arising out of and in the course of his or her employment, that is covered by the act. Ihm v. Crawford & Co., 254 Neb. 818, 580 N.W.2d 115 (1998).

This section limits available remedies for injuries even when a statute is violated or crime is committed if the illegal feature of the conduct is not the causative factor in the injury. Kopfman v. Freedom Drilling Co., 220 Neb. 323, 370 N.W.2d 89 (1985).

Where plaintiff elected to take under the statute, and was paid compensation benefits by insurer, he cannot recover anything more in contract or tort. Pettigrew v. Home Ins. Co., 191 Neb. 312, 214 N.W.2d 920 (1974).

In compensation cases, the statute prescribes the entire scope of the right and remedy, and the parties are limited to the adjective procedure either expressly or by necessary implication set forth therein. McIntosh v. Standard Oil Co., 121 Neb. 92, 236 N.W. 152 (1931).

Employee who, by not affirmatively rejecting, has elected to be bound by Workmen's Compensation Act, has surrendered right of action against employer for injury through machine being left unguarded in violation of factory act. Navracel v. Cudahy Packing Co., 109 Neb. 506, 191 N.W. 659, 193 N.W. 768 (1923).

2. Exemption from liability

Where a surviving husband's deceased wife's employer was immune under section 48-148 from the surviving husband's suit against it for bystander negligent infliction of emotional distress, a fellow employee of the deceased wife was also immune from the surviving husband's suit because under this section, the employer's immunity extended to the deceased wife's fellow employee. Pittman v. Western Engineering Co., 283 Neb. 913, 813 N.W.2d 487 (2012).

The exemption from liability given an employer and insurer by this section does not include employer's underinsured motorist carrier, even though said insurance carrier is also employer's workers' compensation carrier. Muller v. Tri-State Ins. Co., 252 Neb. 1, 560 N.W.2d 130 (1997).

The portion of this statute that exempts from liability negligent coemployees of an injured employee does not violate the open access provision of Neb. Const. art. I, sec. 13. Peterson v. Cisper, 231 Neb. 450, 436 N.W.2d 533 (1989).

3. Miscellaneous

Receipt and acceptance of workmen's compensation by city fireman does not bar his right to a fireman's pension. City of Lincoln v. Steffensmeyer, 134 Neb. 613, 279 N.W. 272 (1938).

Parent's right of action for injury to minor son is not barred by Workmen's Compensation Act. Allen v. Trester, 112 Neb. 515, 199 N.W. 841 (1924).

An employee who has failed to file an election not to come under act has no right of action for damages for negligence of employer. Nedela v. Mares Auto Co., 106 Neb. 883, 184 N.W. 885 (1921).

Whether pension received from city by widow of deceased policeman is compensation, is not decided. Good v. City of Omaha, 102 Neb. 654, 168 N.W. 639 (1918).